Parricide - Murder for hire
Number of victims: 1
Date of murder: February 17, 1985
Date of arrest:
5 days after
Date of birth: September 22, 1952
Ronald Owens (her
Method of murder:
Beating with a tire iron
Location: Shelby County, Tennessee, USA
Sentenced to death on
January 15, 1986. Commuted to life in prison
on July 13, 2010. Released on parole on October 7, 2011
United States Court
For the Sixth Circuit
Gaile K. Owens v. Earline Guida, Warden
Gaile Kirksey Owens was
convicted of hiring Sidney Porterfield to murder her husband, Ronald
Owens, who was beaten to death Feb. 17, 1985, at the home he shared
with his wife and two sons in Bartlett, a Memphis suburb. Porterfield
also is sentenced to death.
Gaile Owens gets parole on what would have been
the anniversary of her execution
By Kay West - NashvilleScene.com
October 6, 2011
Little more than a year ago, Gaile Owens was facing death for
hiring a man to kill her husband Ron Owens in 1985. As of last week,
on what would have been the first anniversary of her scheduled
execution, Owens now faces something once considered beyond hope — a
life outside prison.
On Sept. 7, 2011, more than 70 people gathered in the visitation
room of the Tennessee Prison for Women. It was the first parole
hearing for Owens, known here as Inmate No. 109737. As Owens awaited
the outcome — joined by her son Stephen and daughter-in-law Lisa, as
well as her attorneys, friends, supporters and prison staff — time
slowed to a standstill in the silent room.
Finally, the lone parole-board member present, Patsy Bruce, looked
at the petite, gray-haired Owens and said, "I have decided I am going
to vote yes."
As much emotion as those eight words brought, Bruce reminded the
group that she was just one of seven members, and that Owens' file
would now be routed one by one through the board — by hand — until
four votes reached the same decision, yea or nay. The process, she
said, could take from two to four weeks, depending on how the votes
were tallied along the way.
Thus began an online vigil, conducted by Lisa and Stephen,
attorneys Gretchen Swift and Kelley Henry, and dozens of friends and
supporters. They started checking daily the page dedicated to
Tennessee Felony Offender Information on the Board of Probation and
Day after day, the status stayed the same. Supervision Status:
Incarcerated. Location: Tennessee Prison for Women. Sentence Begin:
2/22/1985. Parole Eligibility: 9/03/2011. Parole Hearing: 9/07/2011.
And day after day, the response next to Hearing Result remained
frustratingly the same: Pending.
Until the morning of Sept. 28 — three weeks to the day after the
parole hearing, and one year after the day Gaile Owens would have been
executed, had then-Gov. Phil Bredesen not commuted her sentence. That
day Lisa Owens checked the website. Under the box marked Hearing
Result was the word they had been praying for, but hardly dared
believe they would see:
It was just before 7 a.m., and Stephen had already left for work.
Lisa frantically called him and told him to get on the site. Still
unsure if what they were seeing meant what they hoped, Stephen called
Swift. She assured him it did.
Lisa, Stephen, Swift and Henry drove to Stewart's Lane and passed
through prison security to revel in the news with Gaile. For more than
two decades, Stephen — who at age 11 found his father brutally beaten
and barely alive in the family's suburban Memphis home — maintained no
contact with his mother. Today, they gathered in the same room where
Patsy Bruce said yes.
"Stephen and Gaile embraced for a long time," says Henry. "I think
Gaile was still a little bit numb, but overall, there was just joyful
gratitude, and lots of joyful tears from all of us."
Presumably, there were two men that day who were not crying tears
of joy: Tennessee Board of Probation and Parole Chairman Charles
Traughber and board member Chuck Taylor, who both voted to reject her
request. Voting yes with Bruce were members Ronnie Cole, Joe Hill and
Lisa Jones. A seventh vote was not necessary.
Now, only one box remains blank on Gaile Owens' status: Sentence
According to Henry, it could be one to three weeks before Lisa and
Stephen Owens make the trip they have been praying for since Stephen
and Gaile reconciled in 2009 — the one that will start his mother's
life on the other side of prison walls.
First, she must be assigned a parole officer who has experience
with people who have been incarcerated a long time. During a rare
moment of levity during the hearing, Bruce advised Owens, "You will be
on parole the rest of your life. Looking at your file and the people
here today, you do not seem to have trouble making friends. Make a
very good friend of your parole officer."
Once Owens is released, she will first live with Patricia and
Eugene Williams, volunteers who have been visiting her in prison for
13 years and have offered her a room in their Davidson County home as
she acclimates. She will be looking for a job, a prospect that close
friend and team member Katy Varney says she is both apprehensive and
excited about. She also plans to volunteer with the YWCA's Domestic
Violence Program. She prays daily that a meeting with her younger son,
who still lives in Memphis, is somewhere down the road.
But mostly, Owens told Varney, her to-do list is pretty simple.
"I'm excited to see new things, see what's out there. You see
things on television, but that's not the same as seeing them in
person. I want to have a bubble bath! I hope to watch my grandchildren
play. But the biggest thing for me, something I have literally dreamed
about so many nights for so many years, is to just walk in a park with
my sons. That would be my dream come true."
Tennessee woman released after 25 years on death
By Tim Ghianni - Wgntv.com
October 7, 2011
NASHVILLE, Tenn (Reuters) - A Tennessee woman who
sat on death row for a quarter-century for the killing of her husband
was released from custody on Friday.
Gaile Owens, 58, was greeted by a small group of
friends and family when she was released from the Tennessee Prison for
"Her release plan was approved and she will be
reporting regularly to a parole officer here in Nashville," said
Melissa McDonald, spokeswoman for the Tennessee Board of Probation and
Parole, which last week approved the release.
Owens had been scheduled to die by lethal injection
September 28, 2010, but that sentence was commuted by then Governor
Phil Bredesen, which made parole a possibility.
Bredesen said at the time that he spared Owens
after a review showed she had admitted her guilt and that other people
who committed similar crimes generally drew lesser sentences. Bredesen
also noted that she had accepted a conditional plea agreement for life
imprisonment prior to her original trial.
Bredesen said that while Owens' claims that she had
been physically abused by her husband were "inconclusive," she may
have been suffering from "battered woman syndrome," which was another
factor in his decision.
Parole was recommended by the single member of the
board who was at her first parole hearing September 7, 2011. That
recommendation was forwarded to other members of the board, who
considered the case and recommended 4-2 to parole her.
During her parole hearing, Owens testified about
sexual assaults and physical abuse she suffered from her husband that
she said led her in 1984 to contract a man to kill him. She said that
during her court trial in 1986 she hadn't talked about abuse because
she felt it would harm her children.
A year to the day after she was scheduled to be the
first woman executed in Tennessee in more than a century, the board
announced that she would be given her freedom.
Owens had been sentenced to die after being found
guilty in 1986 of arranging to have her husband killed.
Evidence showed she had solicited several men in
poor Memphis neighborhoods with offers of up to $10,000 to kill her
husband Ron Owens.
Sidney Porterfield, the man Owens hired, used a
tire iron to beat her husband in the couple's suburban Memphis home
while Owens and their two sons were away.
Porterfield, now 68, also was sentenced to death
and has been on death row since, according to Dorinda Carter,
spokeswoman for the state Department of Correction. Owens was
convicted in 1986 of being an accessory to first-degree murder.
Bredesen commutes death sentence of Bartlett's
Convicted in murder of husband, Bartlett woman
could be free soon
By Richard Locker - CommercialAppeal.com
July 14, 2010
NASHVILLE -- Gov. Phil Bredesen on Wednesday commuted a Bartlett
woman's 1986 death sentence to life in prison.
Gaile Owens was scheduled to be executed Sept. 28.
With sentence credits, she could be eligible to ask the state Board
of Paroles to consider her release from prison as soon as next year.
Owens, now 57, was convicted in Shelby County Criminal Court of
hiring Sidney Porterfield of Memphis to kill her husband, Ronald
Owens, who was beaten to death with a tire iron at the couple's
Bartlett home in 1985.
Porterfield, now 67, was also sentenced to death, but he has a
hearing set for Sept. 30 to determine if he is mentally fit under the
law for execution.
Gaile and Ronald Owens' son, Stephen Owens, could not be reached
for comment Wednesday. But the son, who had been estranged from his
mother until 2009, pleaded publicly for her life during an April news
"I am asking for your mercy. I am the face of the victim in this
tragedy," Stephen Owens said April 20. "Last year I walked into the
Tennessee Prison for Women and saw my mother for the first time in
more than 20 years. I looked my mother in the eyes and told her I
This marks the second death sentence that Bredesen has commuted. In
2007, he commuted the death sentence of Michael Joe Boyd of Memphis to
life imprisonment without the possibility of parole. Boyd was
convicted of murder in the perpetration of a robbery for the shooting
death of William Price outside the Lorraine Motel on Nov. 8, 1986.
The governor cited two major considerations in his decision to
commute Owens' sentence:
"First, there's at least a possibility that she was in an abusive
marriage. While that in no way excuses arranging for murder, that
possibility of abuse and the psychological conditions that can result
from that abuse seems to me at least a factor affecting the severity
of the punishment.
"Second, Mrs. Owens was offered a plea bargain prior to her trial,
of life imprisonment in exchange for her guilty plea. She accepted
that plea bargain, the responsibility and the punishment, and the
district attorney clearly considered that an appropriate resolution as
However, the governor said, that plea bargain offer was contingent
on Porterfield accepting it as well. When he refused, the offer was
withdrawn by prosecutors and she went to trial with Porterfield as a
Bredesen also said that his office reviewed 33 similar Tennessee
cases of women arranging and being charged with the murder of their
husbands, some involving domestic abuse and some not. He said that
only two of the cases resulted in the women being sentenced to death.
"One of them, (former governor) Lamar Alexander commuted," the
governor said. "The second one I'm commuting today."
"I was not surprised at the decision as I watched the news of the
groups petitioning him for the commutation," said former Bartlett
Police Chief Don Wray, who handled the investigation of the case.
But Wray believes Bredesen did what he thought was right. "I always
felt it was my job to pursue those responsible on the victim's behalf,
charge them and bring them to court. It is the court's duty to
determine punishment, not mine."
Gaile Owens Timeline
Feb. 17 -- Ronald Owens is murdered at his Bartlett home.
Feb. 22 -- Gaile Owens and Sidney Porterfield are arrested and
Jan. 2 -- Prosecutors offer plea bargain to both Owens and
Porterfield, contingent on both accepting it. Owens accepts it, but
Porterfield rejects it.
Jan. 14 -- Owens is convicted of accessory before the fact to
first-degree murder. Porterfield is convicted of first-degree murder.
Jan. 15 -- Both are sentenced to death.
Several courts deny Owens' appeals or decline to hear her case.
April 19 -- Tennessee Supreme Court declines request for
commutation, sets execution for Sept. 28.
April 20 -- Owens' son, Stephen Owens, asks Gov. Phil Bredesen to
commute Owens' death sentence.
July 14 -- Bredesen commutes death sentence to life in prison
COURT OF TENNESSEE
January 19, 1988
STATE OF TENNESSEE, APPELLEE
SIDNEY PORTERFIELD AND GAILE K. OWENS, APPELLANTS
Shelby Criminal. Honorable Joseph B. McCartie,
Petition to Rehear Denied February 29, 1988
Cooper, J., Harbison, C.j., Fones, Drowota and
O'Brien, JJ., Concur.
The opinion of the court was delivered by: Cooper
This is a direct appeal from the sentences of death
imposed on the defendants, Sidney Porterfield and Gaile K. Owens, for
the killing of Mrs. Owens' husband, Ronald Owens. The defendant,
Sidney Porterfield was convicted of murder in the first degree. The
defendant, Gaile K. Owens, was convicted of accessory before the fact,
to wit: murder in the first degree.
The defendants question the sufficiency of the
evidence, rulings by the trial court on pre-trial motions, on voir
dire, the admission of evidence, the argument to the jury by the
state, the court's instructions to the jury. The defendants also
insist that the sentencing provisions of the Tennessee Death Penalty
Act, T.C.A. § 39-2-203, are unconstitutional.
After consideration of the several issues and of
the entire record, we are of the opinion that no reversible error was
committed in either the guilt or sentencing phase of the trial, that
the verdicts and sentences are sustained by the evidence, and that the
sentences of death under the circumstances of this case are in no way
arbitrary or disproportionate. See State v. Harbison,
704 S.W.2d 314 (Tenn. 1986); State v.
618 S.W.2d 738 (Tenn. 1981); State v.
615 S.W.2d 142 (Tenn. 1981).
There is little controversy concerning the material
facts. The evidence shows that over a period of months, Mrs. Owens
solicited several men to kill her husband. One of these men was Sidney
Porterfield. She met with him on at least three occasions, the last
being at 2:30 p.m. on Sunday, February 17, 1985. At that time, she
told him that her husband would either be home alone that night or
would be at the church playing basketball.
That evening Mr. and Mrs. Owens and their two sons
attended evening church services. Afterwards, when Mr. Owens remained
at church to play basketball, the boys asked, as they usually did, to
stay with their father. Mrs. Owens refused their request and took them
to a restaurant for diner and then to the home of Mrs. Owens' sister,
where they stayed until approximately 10:30 p.m.
When they arrived home at about 11:00 p.m. Mr.
Owens' automobile was in the driveway. The doors were open, the
interior light was on and Mr. Owens' coat and tie were on the seat.
They found the back door to the house partially open, and the keys in
the lock. There were signs of a struggle in the kitchen and blood was
splattered on the wall and floor. Mr. Owens was found in the den
unconscious, his head covered with blood. Mr. Owens died some six
hours later from multiple blows to his head.
The autopsy revealed that Mr. Owens had been struck
at least twenty-one times with a blunt instrument, described by the
forensic pathologist as a long, striated cylinder such as a tire iron.
The blows had driven his face into the floor, crushed his skull and
driven bone fragments into his brain. Mr. Owens also had sustained
extensive injuries to his hands and strands of hair between his
fingers indicated he had been covering his head with his hands when he
After the killing, George James, one of the men
solicited by Mrs. Owens to kill her husband, contacted the police and
told them of Mrs. Owens' offer. James then assisted the police by
permitting them to record telephone conversations he had with Mrs.
Owens. After one of the calls, James met Mrs. Owens in the Raleigh
Springs Mall in Memphis. James was wearing a hidden body microphone,
which was being monitored by police in a nearby automobile. Mrs. Owens
paid James sixty dollars to keep quiet, telling him that it was all
the money she had. She also stated that she had had her husband killed
because of "bad marital problems." Mrs. Owens was placed under arrest
at the Conclusion of her meeting with Mr. James.
At first, Mrs. Owens claimed that she only had
hired people to follow her husband and "to rough him up." She did
admit paying out some $4,000 to $5,000 to various men for expenses.
Later she confessed to offering three men $5,000 to $10,000 to kill
her husband and to talking with a man known as "little Johnny" at 2:30
p.m. on the day of the murder about killing her husband. She had
promised to pay him three or four days after the murder. When asked
why, Mrs. Owens stated, "e've just had a bad marriage over the years,
and I just felt like he had, mentally I just felt like he had been
cruel to me. There was very little physical violence."
The man who met Mrs. Owens on Sunday afternoon was
identified by witnesses as Sidney Porterfield. A witness also placed
Mr. Porterfield in the vicinity of the Owens' house a week before the
Mr. Porterfield also made a statement to the police
which was entered into evidence. According to Mr. Porterfield, he met
with Mrs. Owens on three occasions to discuss plans for the killing of
Mr. Owens, the last being at 2:30 p.m. on Sunday, February 17, 1985.
He stated that Mrs. Owens offered him $17,000 to kill her husband, and
that he told her he would have to check out the situation. (Shortly
after her husband's funeral Mrs. Owens had asked her father-in law for
$17,000 "to pay some bills.") He further stated that he went to the
Owens' house that evening at about 9:00 p.m. On leaving his
automobile, he put a tire iron in his pocket in case he encountered a
dog. Porterfield stated he was walking in the back yard of the Owens'
house when Mr. Owens came home; that Mr. Owens would not accept his
explanation that he was looking for a house, but informed him he was
going to hold him until the police arrived; that Mr. Owens grabbed him
by the arm and attempted to pull him into the house. According to
Porterfield, Mr. Owens had a brief case in one hand and was grasping
Porterfield with the other. (No attempt was made to explain how Mr.
Owens, with his hands thus occupied, unlocked the door to the house.)
Porterfield said he tried to break away and, when he was unsuccessful,
struck Mr. Owens with the tire iron. The men were then in the kitchen.
Mr. Owens threw his hand up for protection, but would not release Mr.
Porterfield. Porterfield then continued to strike Mr. Owens with the
tire iron, with the result that he did extensive damage to both of Mr.
Owens' hands and to his head. On leaving the Owens' house, Mr.
Porterfield threw the tire iron and the gloves he was wearing into a
dumpster. They were never recovered.
Defendant Porterfield offered no evidence in his
defense. Mrs. Owens presented the testimony of a neighbor, who
testified that Mrs. Owens was almost hysterical after her husband was
found. A funeral home employee also testified. He stated that a large
balance was owing on Mr. Owens' funeral bill, presumably to show that
Mrs. Owens did have large debts to pay after her husband's death as
she had represented to her father-in-law in attempting to secure a
Mr. Porterfield insists that the trial court erred
in admitting co-defendant Owens' out-of-court confession into
evidence. Mr. Porterfield argues that the recitals in Owens' statement
that she would have the money to pay Porterfield three to four days
after the murder, that Porterfield told her "he had never been able to
catch up with him [Mr. Owens] and nothing had ever been right, and
that she did give Porterfield a key to the house did not "interlock"
with defendant Porterfield's confession, and their admission into
evidence was a violation of the rule set forth in Bruton v. United
States, 391 U.S. 123,
88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
In Bruton v. United States, (supra) , the court
held that an inculpatory confession of a non-testifying co-defendant
should not have been admitted in a joint trial with the defendant, who
had not confessed his participation in the crime. In Parker v.
Randolph, 442 U.S. 62,
99 S.Ct. 2132, 60 L.Ed.2d 713 (1979), a
plurality of the United States Supreme Court held that admission of
interlocking confessions with proper limiting instructions conforms to
the requirements of the Sixth and Fourteenth Amendments. Following
this decision, this court held that where confessions of jointly tried
co-defendants are similar in material aspects there is no violation of
the Bruton rule. But, where the confession of one non-testifying
co-defendant contradicts, repudiates or adds to material statements in
the confession of the other non-testifying co-defendant so as to
expose him to an increased risk of conviction or an increase in the
degree of the offense with correspondingly greater punishment, Bruton
is violated. See, e.g., State v. King,
718 S.W.2d 241, 247 (Tenn. 1986); State
524 S.W.2d 473, 477-478 (Tenn. 1975).
Recently, however, the United States Supreme Court
abandoned the reasoning of the plurality in Parker regarding
interlocking confessions and held in Cruz v. New York, U.S. ,
107 S.Ct. 1714, L.Ed.2d (1987), that
where a non-testifying codefendant's confession incriminating the
defendant is not directly admissible against the defendant, the
Confrontation Clause bars its admission at their joint trial, even if
the jury is instructed not to consider it against the defendant and
even if the defendant's own confession is admitted against him.
However, the defendant's confession may be considered at trial in
assessing whether his codefendant's statement are supported by
sufficient "indicia of reliability" to be directly admissible against
him (assuming the "unavailability" of the codefendant) despite the
lack of opportunity for cross-examination and may be considered on
appeal in assessing whether any Confrontation Clause violation was
harmless. See Harrington v. California, 395 U.S. 250,
89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).
This rule was an adoption of Justice Blackmun's Concurring opinion in
Parker v. Randolph, that the Bruton error in that case was harmless.
99 S.Ct. at 2141-2143.
It was error, therefore, to admit Owens' unredacted
confession. Nonetheless, under the facts of the case, in light of the
overwhelming evidence of guilt, considering only Porterfield's
confession and the evidence of the other witnesses and the
circumstances of the murder, the Bruton error was harmless.
While not raising a Bruton issue, Mrs. Owens
insists she was prejudiced by having to try her case with that of Mr.
Porterfield as it prevented her from pleading guilty and taking a
proffered life sentence. The record reveals that the state indicated
to defense counsel that it would recommend life sentences for both
defendants if both defendants would plead guilty. There was no offer
to one defendant to the exclusion of the other. In short, even if the
cases had been severed, Mrs. Owens would have had to stand trial and
would have been subject to the imposition of the death penalty if the
jury found the evidence sufficient. The trial court's denial of a
severance under these circumstances was not an abuse of discretion.
Peabody v. State, 556 S.W.2d 547, 550 (Tenn. Crim. App. 1977);
Seaton v. State,
4 Tenn. Crim. App. 452,
472 S.W.2d 905, 906 (1971).
In a separate action, both defendants moved to have
their cases severed, insisting that the denial of a severance
interfered with their use of peremptory challenges. A motion for
severance is addressed to the discretion of the trial court and its
decision will not be reversed absent a showing of prejudice to the
defendants. State v. Coleman,
619 S.W.2d 112, 116 (Tenn. 1984). Rule
8(c)(1) of the Tennessee Rules of Criminal Procedure provides that
defendants shall be mandatorily joined for trial where, as here, "each
of the defendants is charged with accountability for each offense
The record shows that counsel for defendants were
permitted to collaborate and confer with each other in the exercise of
peremptory challenges so as not to duplicate their challenges and
thereby reduce the effective number of peremptory challenges available
to each. As to the argument, that one defendant on occasion would
exclude a juror satisfactory to the other defendant, we see no
prejudice in this action. The jury selection procedures are designed
to insure the selection of a fair and impartial jury, not to enable
the accused to select particular jurors. State v. Simon,
635 S.W.2d 498, 508 (Tenn. 1982). There
is nothing in the record to indicate that the jury finally selected
was not an impartial and unbiased jury.
The defendants also raise a number of issues with
relation to the voir dire. Specifically, they insist that the trial
Judge erred in denying their motions for individual, sequestered voir
dire, that he unduly limited the questioning of prospective jurors
with respect to exposure to pre-trial publicity, and that he
improperly excused for cause prospective juror, Charlayne Picket. The
defendants also insist that the trial court erred in refusing to grant
a mistrial, when several prospective jurors overheard a newsreporter's
story on trial proceedings, and when two jurors mad prejudicial
remarks during voir dire. Further, the defendant Porterfield charges
the state with using their peremptory challenges to systematically
exclude blacks from the jury. We have carefully considered each of
these contentions and found them to be without merit. The ultimate
goal of a voir dire is to see that the jurors are competent, unbiased,
and impartial. On reading the voir dire in this case, we are impressed
with the fact that the counsel attained this goal. We are further of
the opinion that no prejudicial error was committed by the trial court
in its numerous rulings during voir dire.
The basis for the request for individual voir dire
was the fear that prospective jurors had been exposed to and
remembered newspaper, television, and radio reports of the crime for
which the defendants were being tried. Where a crime is highly
publicized, the better procedure is to grant the defendants
individual, sequestered, voir dire. However, it is only where there is
a "significant possibility" that a juror has been exposed to
potentially prejudicial material that individual voir dire is
mandated. State v. Claybrook,
736 S.W.2d 95 (Tenn. 1987); Sommerville
521 S.W.2d 792, 797 (Tenn. 1975).
In the instant case, the trial Judge questioned
prospective jurors as to their knowledge of the case from either
having discussed it in their neighborhood, or having read it in the
newspaper, or having heard it on the radio or television. Most of the
prospective jurors who had been exposed to some type of pre-trial
publicity responded that they only vaguely recalled what they had read
or heard. Many did not recall anything they had read or heard. The
trial court also inquired of every prospective juror exposed to
pre-trial publicity, whether they could set aside their recollection
and render a decision based only upon the evidence presented at trial.
Five prospective jurors stated they could not and were excused by the
court for cause. During this questioning of prospective jurors on
pre-trial publicity, the court was careful to see that nothing
inflammatory or prejudicial to the defendants was revealed. And, the
answers of the jurors actually seated in the case do not give any
indication that the jurors remembered the pre-trial publicity in any
detail or that they were prejudiced or biased against the defendants,
or either of them, as a result of the pre-trial publicity. Under these
circumstances, we see no abuse of discretion in the trial court
denying individual, sequestered voir dire, nor any prejudice resulting
to the defendants because of his ruling.
Exception also was taken by the defendants to the
exclusion of a prospective juror, Charlayne Pickett, for cause. The
substance of Ms. Pickett's statements on voir dire was that she would
automatically vote not to impose the death penalty in this or any
other case regardless of the law and evidence. This disqualified her
as a juror, and the trial court correctly excused her for cause. See
Wainwright v. Witt,
496 U.S. 412,
105 S.Ct. 844, 83 L.Ed.2d 841 (1985).
During the voir dire, defendants moved for a
mistrial when (1) one prospective juror in answer to defense counsel's
question of why he could not consider life as punishment for first
degree murder stated that there was only a certain amount of time that
a person serving a life term would stay "in there" and that something
had to be done about existing crime; and (2) when a juror indicated
that his wife had told him about the case and that he knew" what went
down" and that "there is a case." Both jurors were peremptorily
challenged and were excused by the court. We see no prejudicial error
resulting from these remarks. The first prospective juror was merely
responding to defense counsel's question as to why he would refuse a
life sentences. The second never revealed what he knew about the case,
and the trial court admonished him, and any prospective jurors within
hearing, that anything they had learned about the case prior to trial
could not be used as evidence in the juror's deliberations. Further,
the defendants have failed to demonstrate that the jury which heard
the case was prejudiced or biased by the statements of the two
prospective jurors. The comments did not in any way affect the
presumption of innocence or in any way lessen the burden of the state
to prove its case.
During the voir dire, it was discovered that a
newsreporter had called in a report of the court proceedings using a
pay telephone located outside the courtroom, and that several
prospective jurors were nearby. The report had to do with a statement
of defense counsel that some news agencies were reporting that Mrs.
Owens had plead guilty to the charges against her. Counsel agreed at
the time that to eliminate any possibility of prejudice, the trial
court would ask potential jurors whether they had overheard any
conversation concerning the case and admonish them that any news
report was not evidence. When it developed that several prospective
jurors had overheard the reporter's telephone call (none indicating
they had heard anything specific), defendants moved for a mistrial or
in the alternative a new jury panel. The court denied the motion, but
did grant defendants individual voir dire on this incident. Of those
questioned individually on this issue, none had overheard anything
prejudicial or even substantial. It follows that the trial court did
not commit prejudicial error in denying defendants' motion for a
The defendant Porterfield insists that the blacks
were underrepresented on the panels of prospective jurors and that
this was due to the systematic exclusion of blacks in the jury
selection process. He further charged that the trial Judge erred in
refusing an offer of proof on the issue. While systematic exclusion is
charged in this court, it was not the basis of the objection to the
jury panel in the trial court. However, whenever a defendant in an
identifiable class raises the specter of discrimination in the
selection of prospective jurors, he should be given the opportunity to
develop his charges. However, from the record before us, no prejudice
resulted to Mr. Porterfield from the rulings by the trial court in
this area. The jury as finally selected consisted of two black males,
five white males and five white females. The state had four unused
peremptory challenges, and could have excluded the two black males
from the jury had their goal been the exclusion of blacks.
In the bifurcated sentencing hearing, the forensic
pathologist again testified for the state concerning the circumstances
of Mr. Owens' death, such as blood being inhaled, bone fragments being
driven into his brain, and the fact that Mr. Owens had lived six hours
after the beating. Two photographs showing the head wounds suffered by
Mr. Owens also were introduced.
In addition, the state presented proof that Mr.
Porterfield had been convicted of robbery with a deadly weapon in 1968
and of simple robbery twice in 1971. The state also relied on the
circumstances of the killing as shown by evidence in the guilt phase
of the trial.
In mitigation, the defendant Owens presented
evidence that she had been treated by a psychiatrist on one occasion
in 1978 for severe behavioral problems. She also called two jail
employees who testified that Mrs. Owens was a good prisoner who caused
no problems, volunteered to work, and attended Bible study classes.
Mr. Porterfield presented no evidence in mitigation.
In imposing the sentence of death, the jury found
three aggravating circumstances with respect to Porterfield, and two
with respect to Mrs. Owens. No mitigating circumstances were found.
Specifically, the jury found that Mr. Porterfield (1) had been
previously convicted of one or more felonies involving the use or
threat of violence to the person; (2) that he committed the murder for
remuneration or the promise of remuneration, or employed another to
commit the murder for remuneration, or the promise of remuneration;
and (3) that the murder was especially heinous, atrocious, or cruel in
that it involved torture or depravity of mind. See T.C.A. §§
39-2-203(i)(2), (4) and (5). The jury found the same aggravating
circumstances in sentencing Mrs. Owens, except for the finding of
previous conviction of a felony involving the use or threat of
violence to the person.
Defendant Porterfield challenges the sufficiency of
the evidence as to the jury's findings in the sentencing hearing. He
points out that the earlier convictions shown were that of Sydney
Porterfield, Jr., and argues that there is no evidence to show that he
and Sydney Porterfield, Jr. are the same person. On this issue, the
record shows that a fingerpoint technician from the Shelby County
Sheriff's Department testified that the defendant's thumbprint matched
the thumbprint of the person convicted under the name of Sydney
Porterfield, Jr. The jury was justified in our opinion in accepting
this testimony and in concluding that the defendant and Sydney
Porterfield, Jr. are the same person.
Defendant Porterfield also insists that there is
insufficient evidence to show that the murder was for remuneration or
the promise of remuneration, or to show that the murder was especially
heinous, atrocious, or cruel in that it involved torture or depravity
of mind. As to the first contention, the statement Mr. Porterfield
gave to the police describing his meeting with Mrs. Owens and the
purpose of the meeting was sufficient for the jury to find that the
murder was for remuneration or the promise of remuneration. As to the
latter insistence, there is evidence that Mr. Porterfield hit Mr.
Owens with a tire iron at least twenty-one times, causing several
fractures to the skull, to facial bones, and to Mr. Owens' hands.
Several of the blows to the head were inflicted when Mr. Owens was on
the floor and attempting to shield his head by his hands. In our
opinion, the evidence is sufficient to support the jury's Conclusion
that the murder of Mr. Owens in the fashion described was especially
heinous, atrocious, or cruel in that it involved torture or depravity
of mind. See State v. McNish,
727 S.W.2d 490, 494 (Tenn. 1987); State
690 S.W.2d 517, 529 (Tenn. 1985).
While not directly challenging the sufficiency of
the evidence on which the jury predicated the sentence of death, Mrs.
Owens does insist that the trial court erred in not allowing her to
show that she had filed a motion asking the court to allow her to
plead guilty and accept the sentence of life proffered by the state.
The state had indicated that it would accept such a plea, conditioned
upon both defendants pleading guilty. The state withdrew the offer
when Mr. Porterfield declined to plead. Mrs. Owens wanted to show
these negotiations to the jury as a mitigating circumstances.
In Lockett v. Ohio, 438 U.S. 586,
98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the
United States Supreme Court held that the
Eighth and Fourteenth Amendments require that the
sentencer, in all but the rarest kind capital case, not be precluded
from considering as a mitigating factor, any aspect of a defendant's
character or record and any of the circumstances of the offense that
the defendant proffers as a basis for a sentence less than death.
98 S.Ct. at 2965. The Court emphasizes, however, in
a footnote to this sentence that,
othing in this opinion limits the traditional
authority of a court to exclude, as irrelevant, evidence not bearing
on the defendant's character, prior record, or the circumstances of
This court has held that evidence is relevant to
the punishment only if it is relevant to a statutory aggravating
circumstance or to a mitigating factor raised by the defendant.
Cozzolino v. State,
584 S.W.2d 765, 768 (Tenn. 1979).
Evidence regarding Mrs. Owen's interest in accepting a plea bargaining
offer is not relevant to either the issue of punishment or to any
mitigating factor raised by the defendant, and was in our opinion
Both defendants insist that the trial court erred
in permitting the introduction of two photographs at the sentencing
hearing to show the nature and extent of the injuries inflicted upon
the victim. The defendants insist that the photographs were without
any probative value and that the prejudicial effect of the photographs
mandates a reversal of the defendants' convictions. We see no merit in
this argument. It is well-settled that the admissibility of
photographs is a matter committed to the sound discretion of the trial
Judge, whose ruling will not be overturned on appeal absent a clear
showing of abuse of discretion. State v. Banks,
564 S.W.2d 947, 949 (Tenn. 1978). The
photographs in question were relevant to proving one of the statutory
aggravated circumstances -- that is, whether the murder was especially
heinous, atrocious or cruel in that it involved torture or depravity
of mind. While undoubtedly prejudicial to the defendants, in the
sentencing stage of the proceedings and in view of the aggravating
circumstance alleged, they were highly probative of the nature and
extent of the injuries inflicted upon Mr. Owens. While every death by
beating is not as a matter of law to be included within the category
of "especially heinous, atrocious, or cruel. . . ," the infliction of
heavy, repeated, and vicious blows to a helpless, conscious victim may
easily be found by a trier of fact to fall in that category. See State
v. McNish 727 S.W.2d 490 (Tenn. 1987).
The defendants argue that the photographs were
inadmissible because of the state's assurances during voir dire and
during the guilt phase of the trial that it would not seek to
introduce the morgue photographs. Defendants insist that was an oral
stipulation, which caused them to alter their voir dire of the jury.
We find nothing in the record to support this argument of the
defendants. The fact that the state stated it would not introduce the
morgue pictures in the guilt phase of the trial was not a commitment
that the picture would not be offered to the jury in the sentencing
phase, where they were relevant to proof of an aggravating
The defendants insist that the state erred in
failing to give the required notice of the aggravating circumstances
it intended to rely upon in the sentencing phase of the trial. The
record shows that throughout their preparation for trial, the
defendants knew that the state would seek the death penalty. However,
notice of the aggravating circumstances the state intended to prove
was not given the defendants until the day the trial began. Rule
12.3(b) of the Tennessee Rules of Criminal Procedure provides that the
state shall give notice both of its intent to seek the death penalty
and notice of the aggravating circumstances not less than thirty days
prior to trial. It further provides that "if notice is filed later
than this time [30 days], the trial Judge shall grant the defendant
upon his motion a reasonable continuance of the trial." The defendants
sought no continuance in this case. By failing to move for a
continuance, the defendants waived the time requirement for the giving
of notice. We note further that there is nothing in the record to
indicate either that the defendants were surprised when the state
announced the aggravating circumstances it intended to prove, or that
the defendants were prejudiced in any way by the timing of the notice.
Defendant Porterfield also raised the specter of
prosecutorial misconduct during the closing argument in the sentencing
phase of the trial. We have read carefully the argument and are of the
opinion that the argument was pertinent to the issues and was
predicated upon evidence presented during the trial.
There are several issues directed to the
instructions given by the trial court to the jury in the sentencing
stage of the trial. In his first complaint, Mr. Porterfield insists
that the trial court erred in instructing the jury that they must not
allow sympathy or prejudice to influence them in reaching their
verdict. We see no error in this instruction. In California v. Brown,
107 S.Ct. 837, L.Ed.2d (1987), the United
States Supreme Court held that an instruction informing the jury that
they "must not be swayed by mere sentiment, conjecture, sympathy,
passion, prejudice, public opinion or public feeling" during the
penalty phase of a capital murder trial did not violate the Eighth or
Fourteenth Amendments. Id. at 840. According to the Court a reasonable
juror would interpret the instruction "as a directive to ignore only
the sort of sympathy that would be totally divorced from the evidence
adduced during the penalty phase." Id.
He also insists that the trial Judge erred in
failing to define "torture" or "depravity of mind" for the jury and
erred in its definitions of the terms "heinous," "atrocious," and
"cruel." It would have been better had the trial Judge used the
definitions set out in State v. Williams, 690 S.W.2d 517, 532, 533
(Tenn. 1985), as they have been approved by this court. However, the
definitions given were in our opinion adequate. Further, we find no
prejudicial error in the trial court's failure to define the terms
"torture" or "depravity of mind." The evidence in this case supports
the aggravating circumstance, Tenn. Code Ann., 39-2-203(i)(5), as
defined in State v. Williams, (supra) , as the defendant repeatedly
struck the victim with a tire iron, inflicting horrible head wounds.
Furthermore, the remaining two aggravating circumstances were
correctly charged and are supported by the evidence. Under these
circumstances there was no prejudice to the defendant by the failure
of the trial Judge to define "torture" or "depravity of mind." State
v. King, 718 S.W.2d 241 (Tenn. 1986); State v. Duncan,
698 S.W.2d 63, 70-71 (Tenn. 1985).
Further, Mr. Porterfield insists that the trial
court committed reversible error in failing to tell the jury that they
were not to consider the defendant's silence as evidence against him
in the sentencing phase of the trial. The record shows that the
defendant did not request this instruction. Absent such a request, the
failure of the trial Judge to charge on the constitutional right of
the defendant not to give testimony is not error. See Carter v.
Kennedy, 450 U.S. 288, 101 S.Ct. 112, 67 L.Ed.2d 241
(1981); Rowan v. State,
212 Tenn. 224,
369 S.W.2d 543 (1963).
Mr. Porterfield also charges that the trial Judge
failed to instruct the jury on the quantum of proof required for the
imposition of the death penalty. We find no error in this part of the
court's instructions. The trial Judge charged verbatim the Tennessee
Pattern Jury Instruction, T.P.I. -- Crim. 20.03, formulated for use at
the sentencing hearing in a capital case, which contains the statutory
language of T.C.A. § 39-2-203(g), and it is in our opinion a
sufficient and correct charge.
Mr. Porterfield also argues that the jury
instructions could be interpreted as mandating the death penalty. The
instruction questioned is in the language of T.C.A. § 39-2-203(g),
which this court has previously held does not create a mandatory death
penalty. See State v. Teague,
680 S.W.2d 785, 790 (Tenn. 1984).
Finally, it is argued that the trial Judge
committed error in failing to instruct the jury to presume that the
defendant would actually serve a life sentence, if that were the
jury's verdict. A similar argument has been made in other cases and
found to be without merit. State v. Melson,
638 S.W.2d 267, 278 (Tenn. 1979).
The defendants also question the constitutionality
of the Tennessee Death Penalty Act. They concede the issue is being
raised only to preserve it for later review and acknowledge that this
court has repeatedly upheld the constitutionality of T.C.A. § 39-2-203
and the constitutionality of death sentences imposed under the
statute. See State v. Melson,
638 S.W.2d 342, 367-368 (Tenn. 1982);
State v. Strouth,
620 S.W.2d 467, 470 (Tenn. 1981); Houston
593 S.W.2d 267 (Tenn. 1980). In doing so,
this court has pointed out that "there is nothing in either the state
or federal constitution, historically or otherwise, which precludes
the imposition of the death penalty in accordance with the procedures
and under the circumstances provided for in the present statutes of
this state." State v. Austin, 618 S.W.2d 738, 741 (Tenn. 1981).
While conceding the constitutionality of the
Tennessee Death Penalty Act, defendant Porterfield does take the
position that the Act is discriminatorily applied in that "the death
penalty is disproportionately imposed upon black citizens who have
allegedly killed white citizens." There is nothing in the record to
support evidence. Further, if the defendant is to prevail under the
Equal Protection Clause of the Constitution of the United States, it
is incumbent upon Mr. Porterfield to show that the jury "acted with
discriminatory purpose" in his case. See McCleskey v. Kemp, 481 U.S. ,
107 S.Ct. 1756, 95 L.Ed.2d 262 (1987).
This has not been done. In fact, it is not even argued.
All assignments of error are overruled. The
judgment of conviction in each case and the sentence imposed pursuant
thereto are affirmed. The sentences will be carried out as provided by
law on April 15, 1988, unless otherwise stayed or modified by
appropriate authority. Costs are taxed to appellants.
Court of Criminal Appeals of Tennessee
March 25, 1994
GAILE K. OWENS, APPELLANT
STATE OF TENNESSEE, APPELLEE
PERVIS TRYONE PAYNE, APPELLANT
STATE OF TENNESSEE, APPELLEE
Shelby County. Hon. Arthur Bennett, Judge.
(Post-Conviction). Shelby County. Hon. Bernie Weinman, Judge.
White, Dwyer, Tipton
The opinion of the court was delivered by: White
These cases are before the court on an
interlocutory appeal granted pursuant to Rule 9 of the Tennessee Rules
of Appellate Procedure *fn1 and consolidated for appeal. Both cases
raise the issue of whether the trial court properly denied motions for
ex parte hearings on motions to provide funds for investigative
assistance and expert services in post-conviction proceedings. For the
reasons set out herein we affirm the rulings of the trial courts but
remand for further proceedings consistent with this opinion.
I. Posture of the Cases
Both appellants have been tried and convicted of
first-degree murder by juries in the Shelby County Criminal Court.
Their cases have been upheld by the Tennessee Supreme Court and one
aspect of appellant Payne's case has been ruled upon by the United
States Supreme Court. Both appellants are on death row and are
A. Owens v. State
Appellant Owens was sentenced to death on January
15, 1986. Her conviction and death sentence were upheld by the
Tennessee Supreme Court on January 19, 1988. State v. Porterfield &
Owens, 746 S.W.2d 441 (Tenn. 1988). A request for rehearing was
denied. Id. at 452. Certiorari to the United States Supreme Court was
denied. Porterfield v. Tennessee, 486 U.S. 1017, 100 L. Ed. 2d 218,
108 S. Ct. 1756 (1988).
On June 27, 1988, appellant Owens filed a petition
for writ of habeas corpus in the United States District Court for the
Western District of Tennessee. The federal court initially held the
petition in abeyance to allow appellant to pursue remedies under the
state Post-Conviction Procedures Act but ultimately dismissed the
petition without prejudice.
A lengthy petition for post-conviction relief was
filed by counsel for appellant Owens in February 1991. Thereafter, in
September, 1991, an "Ex Parte Motion of Petitioner to Maintain
Documents and Pleadings Under Seal and to Maintain Related Proceedings
Confidential" was filed. The motion requested that the court maintain
under seal an "Ex Parte Motion for Authorization of payment for
Support Services" and supporting affidavits. The court denied the
motion on the basis of Teague v. State, 772 S.W.2d 915 (Tenn. Crim.
App. 1988), perm. to appeal denied, (Tenn. 1989).
As a result of the denial, appellant Owens
petitioned the trial court to allow an interlocutory appeal pursuant
to Rule 9 of the Tennessee Rules of Appellate Procedure. The trial
court granted that motion holding that "if Owens is compelled to
present her request in open court, . . . the state will gain access to
[the] highly confidential information simply because Owens is
indigent." Thus, the trial court concluded that the interlocutory
appeal was necessary because "the injury to Owens if the Court is in
error is irreparable, severe, will absolutely occur, and cannot be
corrected by later appeal."
B. Payne v. State
Appellant Payne was sentenced to death on February
15, 1988. The Tennessee Supreme Court upheld his conviction and
sentence on April 16, 1990. State v. Payne, 791 S.W.2d 10 (Tenn.
1990). On writ of certiorari, the United States Supreme Court
considered one issue in appellant Payne's case and affirmed the
judgment of the Tennessee Supreme Court. Payne v. Tennessee, U.S. ,
111 S.Ct. 1597, L. Ed. 2d (1991).
Appellant Payne filed a petition for
post-conviction relief on January 13, 1992. Pursuant to a court
deadline, appellant filed a Motion to Proceed Ex Parte on Motion to
Provide Funds for Investigative Assistance and a Motion to Proceed Ex
Parte on Motion to Provide Funds for Expert Services. The court denied
the motion on March 6, 1992, but granted an interlocutory appeal on
March 20, 1992, finding that irreparable injury would occur if the
court's ruling was in error; that a need existed for "a decisive
ruling," and "uniformity on this issue," and that a "likely savings in
overall time and expense" would result from an interlocutory appeal.
In both cases this court, in divided opinions,
granted the interlocutory appeal pursuant to Rule 9 of the Tennessee
Rules of Appellate Procedure. The state contests those grants and
questions whether the issue presented in these consolidated appeals is
appropriate for interlocutory appeal under Rule 9. We agree with the
previous orders of this court granting the interlocutory appeals and
proceed to address the merits.
We are benefitted in this case by excellent briefs
on behalf of both appellants, the state, and the Amicus Curiae. The
numerous arguments raised in those documents can be categorized into
three groups: those based on case precedent, those based on the
applicable statute and rules, and those based on the state and federal
constitutions. Supporting public policy arguments are also raised.
Before we reach the issue of whether a post-conviction,
death-sentenced petitioner is entitled to an ex parte hearing to
request payment for support services, we must determine whether a
post-conviction, death-sentenced petitioner is entitled, under any
circumstances, to support services at state expense.
A. Teague and its progeny
The state argues that the issue before us has been
determined on at least three prior occasions in the cases of Teague v.
State, Carruthers v. State, and Laney v. State. Each of those cases,
in some context, discussed the applicability of Tennessee Code
Annotated Section 40-14-207 to post-conviction cases.
In the earliest of those three decisions, Walter
Lee Carruthers v. State, No. 1164 (Tenn. Crim. App., Knoxville,
November 22, 1988), this court declined to disturb a trial court's
orders in a post-conviction case denying the appointment of more than
one counsel and denying funds for a statistician. The court reasoned
that while Supreme Court Rule 13, Section 1 *fn2 allows for the
appointment of two attorneys in a "capital case," the section did not
"by its own terms apply to post-conviction litigation." Carruthers,
supra, slip op. at 13. As to the appointment of a statistician, the
court concluded that the trial court's ruling that Tennessee Code
Annotated Section 40-14-207(b) which authorizes the compensation of
expert and investigators in capital cases, was inapplicable to
post-conviction "appeared to be correct." Even if the statute applied,
the court determined that no relief was appropriate because the
appellant had failed to show a "particularized need for the requested
expert or investigator." Id., slip op. at 14.
In Teague v. State, 772 S.W.2d 915 (Tenn. Crim.
App. 1988), perm. to appeal denied, (Tenn. 1989), appellant, who had
hired his own counsel and investigator, appealed from the denial of
his petition for post-conviction relief. Among other issues he
challenged the trial court's refusal to appoint and compensate an
investigator. This court upheld the trial court's denial finding that:
"[a] fair reading of T.C.A. § 40-14-207(b) and Rule
13 of The Tennessee Supreme Court, coupled with the fact that T.C.A. §
40-30-121 is silent as to these matters, leads this court to the
Conclusion that the provisions of this statute and rule are limited in
scope and application to the trial of an accused for a capital offense
which the district attorney has announced his intention to seek the
death penalty. The statute and rule do not apply to post-conviction
proceedings notwithstanding the fact the petitioner has been sentenced
to the extreme penalty of death."
772 S.W.2d at 927.
In analyzing the issue, the Teague court noted the
inapplicability of an Ake v. Oklahoma analysis to the case at bar.
Importantly the court also stressed that "these services . . . were
being furnished by the petitioner's family." Id. Concluding that no
right to effective assistance of counsel on post-conviction existed,
the court found appellant's claim to be without merit.
We have relied on Teague for the general
proposition that expert and investigative services are not available
for indigent defendants in post-conviction proceedings notwithstanding
the fact that Teague had a privately-retained investigator working on
his case *fn3 at the time he requested a court-appointed one. Richard
Caldwell v. State, No. 9 (Tenn. Crim. App., Jackson, March 21, 1990),
perm. to appeal denied, (Tenn. 1991). One of those cases relying on
Teague is State v. Thomas Gerald Laney, No. 873 (Tenn. Crim. App.,
Knoxville, Dec. 14, 1989), perm. to appeal denied, (Tenn. 1990). In
Laney, the court upheld the denial of investigative resources finding
that "appellant wants the State of Tennessee to finance a fishing
expedition for the purpose of pursuing some vague and elusive grounds
which may or may not prove to be true. . . . The language [of the
allegations] is conclusory in nature and no factual basis was given to
support the allegations." State v. Laney, supra, slip. op. at 8-9.
Thus, while our court has held that the provisions for expert and
investigative services in Tennessee Code Annotated Section
40-14-207(b) are not applicable to post-conviction cases, it has also
been concerned with the lack of substance in the cases in which the
issue has been raised.
B. Statutes and Rules
Several statutes and rules are relevant to the
issue before us. The Post-Conviction Procedure Act was enacted in 1967
to provide "collateral hearings and relief equivalent to the federal
habeas corpus relief mandated by a 1963 trilogy of United States
Supreme Court cases. *fn4 Gary L. Anderson, Post-Conviction Relief in
Tennessee -- Fourteen years of Judicial Administration under the
Post-Conviction Procedure Act, 48 Tenn. L. Rev. 605, 607
(1981)(hereinafter 48 Tenn.L.Rev. at , (supra) ). The Act provides for
the appointment and compensation of counsel and court reporters for
indigent petitioners as "provided for criminal and habeas corpus cases
by chapter 14, parts 2 and 3 of this title." Tenn. Code Ann. §
40-30-121 (1990 Repl.).
Chapter 14 of Title 40 pertains to rights of defendants. In addition
to enumerating trial rights in part one, parts two and three address
the rights and methods of securing representation, transcripts, and
court reporters for indigent defendants. Sections 206 through 210
relate directly to compensation for counsel. Section 206 delegates to
the Supreme Court the obligation to "prescribe by rule the nature of
the expenses for which reimbursement may be allowed . . . as it deems
appropriate in the public interest." Tenn. Code Ann. § 40-14-206 (1990
Repl.). Section 207(b), on which appellants rely, addresses the
procedure by which a "defendant [who] has been found to be indigent"
in "capital cases" may petition the court ex parte for authorization
for investigative or expert services "necessary to ensure that the
constitutional rights of the defendant are properly protected." Tenn.
Code Ann. § 40-14-207(b)(1993 Supp.). Sections 208 and 209 address
reimbursement and compensation for appointed counsel and public
defenders respectively; Section 210 sets out the procedure for
defraying costs in the major metropolitan areas of the state. Tenn.
Code Ann. §§ 40-14-208 & -209 (1993 Supp.).
Appellants argue that Section 207(b) when read in conjunction with
Tennessee Code Annotated Section 40-30-121 allows ex parte hearings on
requests for investigative and expert services in post-conviction
proceedings as well. The state, conversely, relying on Teague and the
plain language of Section 121 argues that only the counsel and court
reporter provisions of Chapter 14 apply since that is the directive of
Section 121. While we have noted that Teague is limited by the fact
that petitioner already had a retained investigator, we agree with the
state that Section 121, by its plain language, only incorporates the
counsel and court reporter provisions of Chapter 14.
Our inquiry, however, is not at an end. In accordance with the
obligation imposed upon it in Section 206, the Supreme Court has
promulgated a rule pertaining to the appointment and compensation of
counsel for indigent defendants. Tenn. Sup. Ct. R. 13. By its terms,
and by its relationship to the incorporated provisions of Chapter 14,
it is relevant and applicable to the issue before us.
Rule 13 is divided into two parts. Part one deals with the appointment
of counsel. The rule is specifically applicable to situations "where a
petition for habeas corpus [or] post-conviction relief . . . has been
filed." Tenn. R. Sup. Ct. R. 13(1). Part two of the rule pertains to
the compensation of appointed counsel. The fee structure is set out in
subpart B and is determined by the nature of the case. Specifically
ten types of cases are listed: adult and juvenile misdemeanor cases;
adult and juvenile contempt cases; non-capital juvenile felony cases;
General Sessions and Municipal Court adult felony cases; Trial Court
non-capital adult felony cases; non-capital appeals; early release or
suspended sentence hearings; non-capital post-conviction and habeas
corpus cases; probation revocation hearings; and capital cases. Tenn.
Sup. Ct. R. 13(2)(B)(1)-(10).
Unless subdivision ten "capital cases" applies to all capital cases,
including post-conviction cases, counsel appointed in capital
post-conviction cases would not be entitled to compensation. That
interpretation would create an absurd and anomalous result in light of
the mandate in Tennessee Code Annotated Section 40-30-121 ("indigency
shall be determined and counsel . . reimbursed as now provided by
chapter 14 . . . .") and Section 40-14-206 ("such rules shall provide
for compensation for appointed counsel, not otherwise compensated, in
all cases where appointment of counsel is required by law"). We
conclude that the only reasonable interpretation is that subdivision
ten applies to all capital cases at trial, on appeal, and on
collateral attack through either post-conviction or habeas corpus.
Subdivision ten of the rule is divided into four paragraphs. The first
and second paragraphs pertain to attorney fees for "capital cases."
They use no terminology other than "capital cases" and, aside from the
contradiction implicit in the use of that term given its stated
definition, *fn6 no inherent conflict results from their applicability
to post-conviction cases. The last two paragraphs in subdivision ten
also apply by their terms to "capital cases." Given the Conclusion
that an anomaly would result if subdivision ten did not include
post-conviction cases, those two paragraphs would, at first glance,
appear applicable to post-conviction cases as well. But the verbiage
of the last two paragraphs encumbers this Conclusion as it contains
terms such as "defendant" and "defense counsel" rather than
"petitioner, "petitioner's counsel," or "party." *fn7 Thus we are
faced with a difficult choice: either all of subdivision ten applies
to post-conviction capital cases notwithstanding the "slip of pen" in
paragraph three or the subsection must be interpreted to be
miraculously bisected into two applicable paragraphs though not so
subdivided. We deem the former approach to have more integrity,
particularly in light of the similar "slip" in other portions of the
These last two paragraphs of subdivision ten provide:
In capital cases, the court may determine that
investigative or expert services, or similar services are necessary to
ensure the protection of the constitutional rights of a defendant.
(Tenn. Code Ann. § 40-14-207). The defense counsel must seek prior
approval for such services by submitting a written motion to the Court
(a) the name of the proposed expert or service;
(b) how, when and where the examination is to be conducted or the
services are to be performed;
(c) the cost of the evaluation and report thereof; and
(d) the cost of any other necessary services, such as court
If the motion for expert services is granted, the court must grant the
prior authorization for these expert services in a reasonable amount
to be determined by the court. The authorization shall be evidenced by
a signed order of the court. The order shall be made part of the
record in the case and a certified copy included with the attorney's
claim for compensation and reimbursement. . . .
Tenn. Sup. Ct. R. 13(2)(B)(10).
In accordance with our interpretation, then, in the appropriate case,
at trial, on appeal, or on collateral attack through either
post-conviction or habeas corpus, the court may authorize payment for
investigative, expert, or other similar services. An appropriate case
for investigative or expert services is a capital case in which the
court determines that "investigative or expert services, or other
similar services are necessary to ensure the protection of the
constitutional rights" of a petitioner. Id. (emphasis added).
After setting out this standard the rule refers parenthetically to
Tennessee Code Annotated Section 40-14-207. That reference undoubtedly
is to subsection b of Section 207 which includes the identical
standard for determining when support services may be authorized at
the trial level. Tenn. Code Ann. § 40-14-207(b)(1993 Supp.). It is an
equally appropriate standard for application to the post-conviction
The burden of establishing that the services are necessary is on
petitioner and is a heavy one. Only in limited circumstances in which
petitioner establishes that proving an infringement of petitioner's
constitutional rights requires investigative or expert services will
appointment be appropriate. A petitioner will never be entitled to an
expert or investigator solely to assist in searching for
infringements. Rather, entitlement will arise only upon demonstration
We can, however, encourage those with the authority to act to consider
relevant experiences of others. Congress deemed an ex parte procedure
necessary "in order to protect the accused from premature disclosure
of [the] case." S. Rep. No. 346, 88th Cong., 1st Sess. 3 (1963).
Congress' recognition of the importance of an ex parte proceeding is
instructive and persuasive. The scope of our Post-Conviction
Procedures Act was to be "at least as broad in scope" as federal
habeas corpus statutes. 48 Tenn.L.Rev. at 610, (supra) . If it is not,
it creates a risk that federal courts will resort to remands in habeas
cases filed long after conviction for appropriate hearings. See Henry
v. Mississippi, 379 U.S. 443, 13 L. Ed. 2d 408, 85 S. Ct. 564 (1965).
We are also totally cognizant that the overwhelming number of courts
that have considered this issue have ruled that petitioners are
entitled to ex parte hearings on motions for support services. See
e.g., Little v. Armontrout, 835 F.2d 1240, 1243 (8th Cir. 1987), cert.
denied, 487 U.S. 1210, 101 L. Ed. 2d 894, 108 S. Ct. 2857 (1988);
Marshall v. United States, 423 F.2d 1315 (10th Cir. 1970); Williams v.
United States, 310 A.2d 244 (D.C. App. 1973); United States v. Tate,
419 F.2d 131 (6th Cir. 1969).
Given the absence of authorization, we must deny appellants the right
to present their requests for support services in an ex parts hearing.
We, therefore, affirm the trial Judge's denial of ex parte proceedings
but remand these cases for a hearing at which the court must determine
whether petitioners can establish that support services are "necessary
to ensure the protection of the constitutional rights" of these
Penny J. White, Judge
(See Opinion Concurring in Part, Dissenting in Part)
Robert K. Dwyer, Judge
(See separate Concurring Opinion)
Joseph M. Tipton, Judge
I concur in the results reached by Judge White in upholding the denial
of an ex parte hearing in a post-conviction case relative to support
services. However, I disagree with her Conclusion that the supreme
court intended for the support services provision of its Rule
13.2.B(10) to apply in post-conviction cases.
Her excellent analysis of Rule 13 discloses at least one seemingly
inapt mix of "party" and "accused" and an anomaly in terms of whether
appointed counsel compensation is covered for capital post-conviction
and habeas corpus cases. Yet, I cannot ignore the references to the
"defendant" and to "defense counsel" when I seek to glean the supreme
court's intent in creating the support services provisions of the
rule. Thus, I adhere to this court's implicit holding in Teague v.
State, 772 S.W.2d 915, 927 (Tenn. Crim. App. 1988) that Rule
13.2.B(10) does not provide for a court-appointed investigator for an
indigent capital post-conviction petitioner *fn1 and I cannot conclude
that the supreme court intended it to provide for an expert in such a
On the other hand, I do not believe that Teague precludes
court-ordered funding of experts in post-conviction cases regardless
of what circumstances may exist nor does it purport to analyze all
laws, court rules or constitutional provisions which might apply under
circumstances not existing in Teague. Also, case law and evidentiary
rules arising after Teague was decided bear on the issues. In this
respect, I agree with Judge White's analysis and Conclusions regarding
the implications of Rule 706, Tenn. R. Evid., and Burford v. State,
845 S.W.2d 204 (Tenn. 1992). Thus, if a petitioner demonstrates that
an expert witness is needed -- not just desired or preferable to other
equally probative evidence existing -- to establish a ground for
post-conviction relief and that such a witness cannot be used because
of the petitioner's indigency, then I believe that a trial court is
authorized to appoint an expert. Otherwise, the petitioner would be
effectively barred from invoking the Post-Conviction Procedure Act to
obtain relief from a fundamental constitutional right violation which
should void the conviction or sentence.
As Judge White's examples indicate, the need will usually relate to
proving the prejudice prong of an ineffective assistance of counsel
claim. For instance, if a petitioner had a history of mental health
treatment or exhibited recognizable signs of mental disease or defect
so as to raise a material issue about sanity, competency to stand
trial, or the existence of substantive mitigating evidence, it may be
viewed as deficient performance for an attorney not to seek expert
evaluation and assistance on behalf of an accused. See, e.g., Beavers
v. Balkcom, 636 F.2d 114, 116 (5th Cir. 1981) (failure to pursue
knowledge of two previous mental hospital confinements fell short of
"thorough pre-trial investigation"); United States v. Fessel, 531 F.2d
1275, 1279 (5th Cir. 1976) (when history of mental health treatment
exists so as to make an insanity defense appropriate and the defense
lacks funds, it is the duty of the attorney to seek expert
assistance); United States v. Edwards, 488 F.2d 1154, 1163 (5th Cir.
1974) (recognizing the "particularly critical interrelation between
expert psychiatric assistance and minimally effective representation
of counsel"); Cooper v. State, 847 S.W.2d 521, 530-32 (Tenn. Crim.
App. 1992) (failure to investigate, follow up, and present evidence of
history of mental problems for use at sentencing phase of capital case
was deficient performance). In this respect, the singular importance
of mental health experts on an issue concerning mental condition has
been recognized. See Ake v. Oklahoma, 470 U.S. 68, 80-81, 105 S.Ct.
1087, 1095, 84 L. Ed. 2d 53 (1985). Thus, even if an attorney's
performance were viewed as deficient, a mental health expert may be
needed to show the prejudice flowing from the deficiency.
On the other hand, I do not view a request for the services of an
investigator to be upon equal footing with the request for an expert.
A trial court's authority arising from Rule 706, Tenn. R. Evid.,
relates solely to experts. Also, as Burford indicates, due process may
be implicated when a person is denied a reasonable opportunity to
present constitutional claims in a post-conviction proceeding. In this
regard, the potential difficulties arising from appointed counsel's
assumption of the role of an investigator are not such as could be
viewed to bar a petitioner from having the opportunity to prove his or
her claim. It is the bar, not the increased difficulty, which gives
rise to due process concerns. *fn2 Thus, as a practical matter, a
showing of such particular need for an investigator so as to implicate
due process will not occur.
As for an ex parte hearing relating to the appointment of an expert, I
agree with Judge White that no rule, statute or constitutional
provision mandates one in the post-conviction context. There are
significant differences between a post-conviction petitioner's status
and rights and those of a criminally accused. Obviously, the only
practical time that the state can have an appointment of an expert
reviewed for an abuse of discretion is before the expert services are
rendered. An ex parte procedure effectively precludes timely review.
On balance, the interests of a criminally accused may easily be
weighted more heavily than those of the state in considering whether
an ex parte hearing is justified. However, the same balance does not
exist for the interests of the parties in a post-conviction action. In
any event, the issue is not for this court to resolve.
Joseph M. Tipton, Judge
OPINION CONCURRING IN PART, DISSENTING IN PART
I, too, concur in the results reached by Judge
White in upholding the denial of an ex parte hearing in a
post-conviction case relative to support services.
Like Judge Tipton, I depart from Judge White's Conclusion that the
Supreme Court intended for the provisions of Rule 13.2B(10) to apply
in post-conviction cases and find that the trial court properly
refused the petitioner's request for investigative services. Teague v.
State, 772 S.W.2d 915 (Tenn. Crim. App. 1988). Our Post Conviction
Procedure Act was established to protect against the undue depravation
of constitutional rights. The trial court's denial of investigative
services deprived the petitioner of no such right. Carruthers v.
State, No. 1164 (Tenn. Crim. App., Knoxville, November 22, 1988);
State v. Laney, No. 873 (Tenn. Crim. App., Knoxville, December 14,
At the time of the submission of this application for Rule 9 review, I
opposed the granting of this interlocutory appeal. For the reasons
discussed in that Dissent, as well as the rationale offered herein, I
must vigorously disagree with the remand of this matter for further
ROBERT K. DWYER, JUDGE